Leonard Grunstein
Leonard Grunstein

Ice cream BDS, a messy business

The misguided decision of the board of Ben and Jerry’s ice cream company to boycott Israel, whether in whole or in part, is just the latest example of less than virtuous machinations, in the sordid and antisemitic history of seeking to delegitimize Israel.

It does not promote any positive program designed to enhance the life of those it purports to benefit. Instead, it seeks only to punish and serves no salutary purpose. There are also many political and legal ramifications that may or may not have been considered when the decision was made. This includes negative effects on its corporate parent Unilever, its franchisee in Israel, the Jewish people, Israel, the US and US citizens residing in Israel, including in Jerusalem, Judea and Samaria.

To address this harmful practice, Congress passed the Anti-Boycott Law[i]. It covers a variety of circumstances, including those arising out of the notorious original Arab League boycott of Israel. Indeed, the law was originally enacted in response to this boycott and was designed to protect US ally Israel.

The Law declares it is the policy of the United States to oppose restrictive trade practices or boycotts fostered or imposed by any foreign country against other countries friendly to the United States or against any United States person. The use of the terms ‘fostered’ and ‘foreign country’ is cogent. Neither of these terms is precisely defined, unlike, for example, the term ‘foreign state’ which is expressly defined in the Foreign Sovereign Immunities Act[ii]. The legislative history of the Anti-Boycott Law supports a broad interpretation of these words, so as to be as inclusive as possible, to avoid the subterfuge of using non-state actors to evade its provisions. The Law was intended to cover non-government organizations like the Arab League and, hence, the use of these more expansive terms[iii]. This would, therefore, include Hamas and the PA, which are proto-state organizations that purport to speak for all the Arab Muslim residents of the areas they control. It also does not require the foreign source to be in control of the US party promoting the boycott. Thus, for example, the mere fact that Iran is, directly or indirectly, associated with, sponsors or otherwise supports a boycott by US parties of Israel may also be sufficient basis for invoking the provisions of the Law.

Among other things, the Law, as amended[iv], prohibits refusing or requiring any other person to refuse to do business with or in a boycotted country, with any business concern organized under the laws of the boycotted country or with any national or resident of the boycotted country. This would perforce include Israeli nationals wherever they may reside. In this regard, it is important to note that the efforts reportedly made by Unilever to limit the boycott to the so-called occupied territories of Judea, Samaria and Jerusalem produced only a distinction without merit. The law expressly covers a national of the boycotted country, without reference to where the person resides and in addition covers all residents of the country. Consider, how absurd it is to argue that not boycotting a country, but only boycotting some of its people, who happen to be on the other side of a contrived green line. What’s next prohibiting Israelis from buying ice cream in US stores? Furthermore, what if they also happen to be US citizens?

The Anti-Boycott Law also provides an express prohibition against discriminating against any United States person on the basis of race, religion, sex or national origin.  This includes the approximately sixty thousand (60,000) Americans who reportedly live in Judea and Samaria[v].

In essence Jewish American residents of Efrat, like my brother Z’L and his family, my Jewish American aunt and cousins, who live in the Jewish Quarter of the Old City of Jerusalem, are targeted by this obnoxious boycott. I’m at a loss to understand why the gospel of the board of Ben and Jerry’s requires places over the green line to be Judenrein?

Under US law[vi], it is the policy of the US that Jerusalem should remain an undivided city in which the rights of every ethnic and religious group are protected and Jerusalem be recognized as the capital of Israel. The President of the US officially recognized Jerusalem as the capital of Israel[vii]. Does the Board of Ben and Jerry’s actually intend to defy US law and pursue its own foreign policy in conflict with US policy? Are Jews praying at the Western Wall, the Tomb of the Patriarch, Rachel’s Tomb or the graves of ancestors at the Mount of Olives to be similarly treated under this toxic policy? Don’t they understand that these areas were ethnically cleansed of Jews by the Arabs in 1948, who rejected partition? Do the Oslo Accords and the withdrawal from Gaza mean nothing to these zealous ideologues? Apparently not; their program merely effectuates the malign policies of Iran and Hamas, who support this inimical program of boycotting Israel. This goes to the very essence of why there is a US Anti-Boycott Law.

Earlier this year, more than sixty groups from the US and Europe teamed up with Iran and Hamas to wage a BDS war against Israel[viii]. The Gaza event was called ‘Year to Confront Normalization’ and the related Iranian event, broadcast simultaneously from Teheran, was called ‘Together Against Normalization’. In furtherance of the boycott of Israel by the terrorist Iranian and Hamas regimes, the more than sixty anti-Israel and pro-BDS organizations launched what was called ‘Peoples Against Normalization’ campaign[ix]. The collaborative link to the Iranian regime is probative[x]. It establishes that at the very least Iran is fostering these BDS malevolent efforts in the US.

I can’t help but wonder about the ignorance or insensitivity of many of these dilettante boycotters, who have joined with abhorrent terrorists in boycotting Israel. The avowed purpose of waging this economic war, known as BDS, against Israel and its people is to delegitimize and destroy the State of Israel and ethnically cleanse it of Jews. Don’t they realize they have become the useful dupes of the terrorist Hamas and Iranian regimes?

Besides the criminal and civil remedies under the Anti-Boycott Law, there are also reporting requirements. This puts Unilever in the untenable position of likely having to report to the US government on its own reported intervention[xi] with the board of its subsidiary, as well as, its own actions. Unilever might also compel Ben and Jerry’s to end the boycott on the grounds that it is illegal. At the very least, the boycott could be held in abeyance, pending obtaining a ruling from both the US Departments of Commerce and the Treasury, which have jurisdiction over this kind of a violation.

BDS is antisemitic and foolish. Israel is not an apartheid state. It’s a diverse society with freedom of speech, religion and press, as well as, equal protection under law. This is not the case in the areas controlled by Hamas and the PA[xii].

Israel does so much good; it’s a blessing to the world. As the Bible[xiii] declares, those who bless Israel are blessed.

 

[i][i] Section 8 of the Export Administration Act of 1979, which was implemented as Part 760 of the EAR.

[ii] 28 USCA 1602-1611 and see 1603 (a)-(b).

[iii] See: The BDS Movement: That Which We Call a Foreign Boycott, by Any Other Name, Is Still Illegal, by Marc A. Greendorfer, in the Roger Williams University Law Review, Volume 22, No. 1 (Winter 2017).

[iv] Anti-Boycott Act of 2018, Part II of the Export Control Reform Act of 2018 (50 USC Chapter 58), and the antiboycott provisions set forth in Part 760 of the Export Administration Regulations, 15 CFR parts 730-774 (EAR).

[v] 15% of settlers are American, new research claims, by JTA, Times of Israel, 8/28/2015.

[vi] Jerusalem Embassy Act of 1995.

[vii] Presidential Proclamation 9683 of 12/6/2017.

[viii] BDS groups from US and Europe team up with Iran and Hamas against Israel, by Lahav Harkov, in the Jerusalem Post, dated 3/8/2021.

[ix] BDS groups partner with terrorists from Gaza, Turkey, Iran to fight normalization, dated 3/9/2021 in the Cleveland Jewish Journal.

[x] When BDS Groups and Iran Meet, in Camera on Campus, dated 5/18/2021.

[xi] Ben & Jerry’s board in dispute with owners Unilever over remaining in Israel, by TOI Staff, in Times of Israel, dated 7/20/2021 and Ben & Jerry’s Board Head Says Parent Company Didn’t Seek Their Approval To Say They Will Continue in Israel, by Aaron Bandler, in the Jewish Journal, dated 7/20/2021.

[xii] See Revive Light and Truth; Eschew Night and Fog, by the author, in the Times of Israel blogs, dated 7/8/2021.

[xiii] Number 24:9.

About the Author
Leonard Grunstein, a retired attorney and banker, founded and served as Chairman of Metropolitan National Bank and then Israel Discount Bank of NY. He also founded Project Ezrah and serves on the Board of Revel at Yeshiva University and the AIPAC National Council. He has published articles in the Banking Law Journal, Real Estate Finance Journal and other fine publications.
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